71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 349
Minority Report
A-Engrossed
House Bill 2867
Ordered by the House May 24
Including House Minority Report Amendments dated May 24
Sponsored by nonconcurring members of the House Committee on
Business, Labor, and Consumer Affairs: Representatives LEONARD,
MERKLEY, ROSENBAUM, V WALKER
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
{ - Modifies limit of penalty wage for failure to pay final
wages when due. Imposes civil penalty for failure to pay final
wages when due or failure to pay minimum wage or overtime. - }
{ + Provides additional civil penalties for employers who
fail to pay minimum wages, overtime or wages upon termination.
Authorizes Commissioner of Bureau of Labor and Industries to
impose civil penalty of up to $5,000 per day for failure to pay
minimum wage. Establishes right of employee to file civil action
against employer for failure to pay minimum wage. Provides that
court may impose civil penalty of up to $5,000 per day. + }
A BILL FOR AN ACT
Relating to penalties for violations of wage laws; creating new
provisions; and amending ORS 653.055 and 653.256.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 653.055 is amended to read:
653.055. (1) Any employer who pays an employee less than the
wages to which the employee is entitled under ORS 653.010 to
653.261 is liable to the employee affected:
(a) For the full amount of the wages, less any amount actually
paid to the employee by the employer; { - and - }
(b) For { - civil penalties - } { + penalty wages + }
provided in ORS 652.150 { - . - } { + ; + }
{ + (c) For an additional amount as liquidated damages equal
to three times the amount referred to in paragraph (a) of this
subsection or $200, whichever is greater; and
(d) For 50 percent of civil penalties collected by the
Commissioner of the Bureau of Labor and Industries under ORS
653.256 (2). If the commissioner assesses civil penalties on the
basis of violations relating to more than one employee, each
employee shall receive a pro rata share, based on the amount of
the employee's unpaid wages, of the 50 percent of the civil
penalties collected. + }
(2) Any agreement between an employee and an employer to work
at less than the wage rate required by ORS 653.010 to 653.261 is
no defense to an action under subsection (1) of this section.
(3) The commissioner { - of the Bureau of Labor and
Industries - } has the same powers and duties in connection with
a wage claim based on ORS 653.010 to 653.261 as the commissioner
has under ORS 652.310 to 652.445 and in addition the commissioner
may, without the necessity of assignments of wage claims from
employees, initiate { - suits - } { + civil actions + }
against employers to enjoin future failures to pay required
minimum wages or overtime pay and to require the payment of
minimum wages and overtime pay due employees but not paid as of
the time of the filing of { - suit - } { + the action + }.
The commissioner may join in a single { + administrative + }
proceeding and in one { - cause of suit - } { + action + }
any number of wage claims against the same employer. If the
commissioner does not prevail in such action, the commissioner
shall pay all costs and disbursements from the Bureau of Labor
and Industries Account.
(4) The court may award reasonable attorney fees to the
prevailing party in any action brought by an employee under this
section.
SECTION 2. ORS 653.256 is amended to read:
653.256. (1) In addition to any other penalty provided by law,
the Commissioner of the Bureau of Labor and Industries may assess
a civil penalty not to exceed $1,000 against any person who
willfully violates ORS 653.030, 653.045, 653.050, 653.060 or
653.261 or any rule adopted pursuant thereto. { - However, no
civil penalty may be assessed for violations of rules pertaining
to the payment of overtime wages. - }
{ + (2) In addition to any other penalty provided by law, the
commissioner may assess a civil penalty not to exceed $5,000
against an employer who willfully fails to pay wages required by
ORS 653.025. The commissioner may assess the civil penalty for
each day an employee is not paid the minimum wage. In determining
the amount of the civil penalty to be assessed, the commissioner
shall consider the following:
(a) The willfulness of the failure to pay the wages;
(b) The amount of unpaid wages;
(c) The duration of the violation;
(d) The employer's history of taking necessary measures to
prevent or correct a violation of ORS 653.025;
(e) The employer's cooperation during an investigation and in
paying minimum wages due after a violation of ORS 653.025 is
revealed;
(f) The size of the employer's workforce;
(g) The amount of gross wages paid to the employer's workforce
in Oregon during each calendar quarter when a violation of ORS
653.025 occurs; and
(h) The financial condition of the employer when the
commissioner proposes to assess a civil penalty. + }
{ - (2) - } { + (3) + } Civil penalties authorized by this
section shall be imposed in the manner provided in ORS 183.090.
{ - (3) - } { + (4) Except as provided in subsection (5) of
this section, + } all sums collected as { + civil + } penalties
{ - pursuant to - } { + under + } this section shall be
{ - first applied toward reimbursement of costs incurred in
determining the violations, conducting hearings under this
section and addressing and collecting such penalties. The
remainder, if any, of the sums collected as penalties pursuant to
this section shall be paid over by the commissioner to the
Division of State Lands for the benefit of the Common School Fund
of this state. The division shall issue a receipt for the money
to the commissioner - } { + credited to the Bureau of Labor and
Industries Account and shall be used for the administration of
ORS 653.010 to 653.261 + }.
{ + (5) Fifty percent of all sums collected as civil
penalties under subsection (2) of this section shall be paid to
the employee to whom the employer failed to pay the minimum wage.
If the commissioner assesses civil penalties on the basis of
violations relating to more than one employee, each employee
shall receive a pro rata share, based on the amount of the
employee's unpaid wages, of the 50 percent of the civil penalties
collected. + }
SECTION 3. { + Section 4 of this 2001 Act is added to and made
a part of ORS 653.010 to 653.261. + }
SECTION 4. { + (1) An employee claiming to be aggrieved by a
violation of ORS 653.025 may file a civil action in circuit court
for a penalty of up to $5,000 in addition to any other remedy
available under ORS 653.055 (1)(a) to (c). The court may assess a
penalty not to exceed $5,000 against an employer who willfully
fails to pay wages required by ORS 653.025. The court may assess
the penalty for each day the employee is not paid the minimum
wage. In determining the amount of the civil penalty to be
assessed, the court shall consider the following:
(a) The willfulness of the failure to pay the wages;
(b) The amount of unpaid wages;
(c) The duration of the violation;
(d) The employer's history of taking necessary measures to
prevent or correct a violation of ORS 653.025;
(e) The employer's cooperation during an investigation and in
paying minimum wages due after a violation of ORS 653.025 is
revealed;
(f) The size of the employer's workforce;
(g) The amount of gross wages paid to the employer's workforce
in Oregon during each calendar quarter when a violation of ORS
653.025 occurs; and
(h) The financial condition of the employer when the employee
files the civil action.
(2) Upon the entry of a verdict including an award of penalties
under subsection (1) of this section, the Bureau of Labor and
Industries shall become a judgment creditor as to the penalties
portion of the award to which the Bureau of Labor and Industries
Account is entitled under paragraph (b) of this subsection, and
the penalties portion of the award shall be allocated as follows:
(a) Fifty percent shall be paid to the prevailing party. If the
court awards penalties on the basis of violations relating to
more than one employee, each employee shall receive a pro rata
share, based on the amount of the employee's unpaid wages, of the
50 percent of the penalties awarded.
(b) Fifty percent shall be paid to the Bureau of Labor and
Industries Account and shall be used by the Bureau of Labor and
Industries for the administration of ORS 653.010 to 653.261.
(3) This section shall not be construed to limit or alter in
any way the authority or power of the Commissioner of the Bureau
of Labor and Industries or to limit or alter in any way any of
the rights of an individual complainant or wage claimant until
and unless the complainant or wage claimant starts a civil
action. The filing of a civil action in circuit court under
subsection (1) of this section shall constitute both an election
of remedies as to the rights of that individual with respect to
those matters alleged in the complaint or wage claim filed with
the commissioner and a waiver with respect to the right to file a
wage claim with the commissioner under ORS 652.330.
(4) The provisions of ORS 18.535, 18.537 and 18.540 do not
apply to a civil action brought under this section. + }
SECTION 5. { + Section 4 of this 2001 Act and the amendments
to ORS 653.055 and 653.256 by sections 1 and 2 of this 2001 Act
apply only to minimum wages and overtime pay earned on or after
the effective date of this 2001 Act. + }
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